 Merd hitchwyddiens. The 10th meeting of the Justice Committee in 2016. We have apologies from Douglas Law, Ross and Mary Phee and I welcome Claire Baker to the committee as the Labour Party Substitute on the committee. Claire, do you have any interest relevant to the committee to declare. No, I don't have any interest to declare thank you very much. Primerasol anoddiadau no 1. Diolch i chi'n gwirio'r ddydd o hyfforddiant o'r cyflawn yn anoddiadau, Fa ridingddiadau mae'r anoddiadau yn anoddiadau, mae'r anoddiadau rwyfyr diem ymddangos ydw i. Mae'r anoddiadau â'r cyffrwyr yn anoddiadau a'r anoddiadau i'r anoddiadau. Gender item number two, subordinate legislation, the next item is further consideration of the affirmative SSI on home detention curfew licence amendment Scotland order 2016. I welcome Annabelle Ewing minister for community safety and legal affairs who will speak to the affirmative SSI. Also with the minister today is Linda Pollock, deputy director, community justice, Quinton Fisher, community justice division and Craig McGuffey, directorate of legal services with the Scottish government. I begin by thanking you and your officials for providing the statistics that the committee requested last week. I remind members that officials are permitted to give evidence under this item but may not participate in the formal debate on the instrument under item 3 of the agenda. I refer members to paper number one and ask the minister if you want to make an opening statement. Good morning, convener. I think that in the circumstances I would just refer to the opening statement that I made last week. Do members have any questions that we've got additional information and time to look at this SSI? Oliver Mundell and Rona Mackay. Thank you, convener. I thank the minister as well for providing the additional information. While I recognise that it is a relatively small number of people affected, I think that under the broader principle I've still got concerns that it sends out the wrong signal to both offenders and the wider public. At a time when we are looking to enhance community sentencing, there is a danger that breaching such sentences does not seem to have consequences than it does undermine the process. Is there any further reassurance that you could give on that? I think that the member for his question. In terms of the wider policy objectives, I think that, as I mentioned last week, what we are looking to do is to remove exclusions from a possible grant of HDC. It is by no means an automatic grant to certain categories, as discussed in detail last week. Those in effect who have committed a new offence whilst out from prison before the end of their sentence has come to pass, or those who breach licence conditions, including HDC conditions, whilst out. We can see from the figures that have been provided to the committee that the potential scope in terms of where we are—I think that those figures have been updated to help the committee's deliberations to 21 November 2016—we can see that the figures involved are not substantial, and it has to be pointed out that the possible individuals who could be brought within scope here are individuals who would be eligible for consideration. That does not mean that they would be granted HDC, and that is important to put on the record. In terms of the wider objectives, what we are seeking to do is to encourage rehabilitation, to encourage reintegration into communities, reintegration, building family relationships and reintegration by facilitating productive contributions of individuals to society while they are out on HDC, and thereby, of course, with the ultimate objective of reducing re-offending. That is the key principle to note. I am sure that we all wish to see a reduction in re-offending. I would also add that, of course, the risk assessment—I think that I stressed this point quite considerably last week—the risk assessment carried out is robust and puts public safety at the very heart of that risk assessment, and that is to ensure that, if HDC is granted, it is granted taking into account public safety as primary consideration, looking at issues of possible re-offending or otherwise, and looking at the likelihood of reintegration into society. I wonder whether, in terms of considerations around the prison population, whether, with the SPS making those decisions, there might be pressure in effect to go ahead and release people back into the community in order to help to manage the population itself, rather than looking as rigorously, as you suggest, at the needs of the offender and the concerns that communities might have? No, I do not accept that. With regard to long-term prisoners, the assessments carried out not simply by SPS, but also by the Pro Board. I do not know if officials would like to make any further comment about that suggestion that the prison service would factor in prisoner number management into its risk assessment. That is fair to say. As the minister has said, for longer-term prison sentences it would be Pro Board that would agree the halfway point. It is also worth noting that criminal justice social work is part of the risk assessment in the community as well. I think that the prison service take their job very seriously and do their risk assessment very thoroughly, so that the prison population is not one of the factors that would come into that, but rather the risk profile of the offender, whether there is a risk of the public risk of re-offending, and criminal justice social work are looking in the community as well about the risk in returning to the community, and in particular the house and the home that they would be returning to, so it is a very thorough risk assessment that is undertaken. Finally, I will ask again about ministerial oversight. I know that Mr MacGuffey provided some answers last week, but I was just slightly concerned about the suggestion that Scottish ministers would have a role in that, and they might be involved at an administrative level. I just wondered if there was any more clarified position this week. If I could just say that the point that was being made was that the Scottish Prison Service Act as the executive agency has delegated authority, there is a framework agreement in place as between the Scottish Government and the Prison Service, which is on the website, which explains in broad brush how the policy is to be implemented. In terms of any authority that is delegated, ultimately control can be taken back, but, as a matter of practice, that is not the case. Again, I would ask officials just to clarify further detail of that. As the minister has said, that is absolutely correct. There is delegated authority, which has given to the chief executive of the prison service that is published in the framework agreement, which you can find online. In that, it states all of the areas where the prison service would have delegated authority in instances such as this. As we have just gone through, the prison service are the people who look at the risk assessment, they are the people who are working with these offenders on a daily basis, and so it is right and proper that they are the people who are making this recommendation in this decision. Do you envisage any scenario in which the cabinet secretary or a minister would be involved in an individual decision? The power has been delegated to the chief executive of the prison service. It is obvious that the chief executive is accountable to ministers, ministers are accountable to the Parliament, but the day-to-day management of an operation of prisons is done through the prison service. To be absolutely clear for the record, the position that was set out last week is incorrect. Ministers would be involved on an administrative level. That is just restating what was said last week. I thank the minister for bringing the statistics to the committee this week. I was very heartened to see that only 6 per cent of HDCs are due to the offending. Does the minister agree that that proves the validity of the system and that it is a system that does actually work? Yes, I would. It is clear that if we look at the latest re-offending stats of this year that are out thus far, which show that we are at a 17-year low in terms of re-offending, I think that shows indeed that policies concerning inter-allia HDC do make a difference and facilitate rehabilitation and reduced re-offending. As I said before, last week and earlier this morning, I am sure that we all wish to see a reduction in re-offending and electronic monitoring in the form of HDC. Does that allow us to do that? Minister, I must say that I have some reservations here. 6 per cent is a percentage. We are talking about individuals here who have committed a crime, who are out on licence, who have breached licence conditions, have home detention curfew, but yet are seen to be, again, given another chance. I wonder where victims and all those people who have seen the original sentence being imposed and automatic error release then kicking in, and then those conditions to be breached or even another crime to have been committed, then still being at liberty. My position is that the original statutory exemptions were there for good purpose. I think that they provide a very strong deterrent and they enforced the severity of breaching those conditions. I feel that if we were to look at this, and we do want to encourage community disposals where appropriate, it should have been done in a wider debate on the whole community justice aspect. For that reason then, I wouldn't be too happy about this. I don't know if anyone else has any comments. Stewart, and then John Finnie. Thank you very much, convener. I know to minister from memory that re-offending, which is calculated, I believe, is another offence within two years, of prisoners released is more of the order of about half or thereabouts. Do you have that number to hand? So, if we create a context that 6 per cent, albeit it will cover a different time frame than the two years, stands a very good comparison with the population that is released from prisoners as a whole. For the more community sentences, I think again that the re-offending rates are substantial ahead. One could almost argue that, if only every other way in which we would be disposed of prisoners was as successful as this, we would be very happy indeed. Is that correct? I agree that the stats on HDC show a relatively low level of re-offending, and I do think that that is to be welcome. It is indicative of the fact that this is an important tool open to community justice partners to facilitate reintegration into the community and reduce re-offending, which I come again to that point. Just to pick up a point that the convener raised, and I think that I made last week, comprised on this working group were, of course, Scottish Women's Aid, and that they were an active participant in the deliberations and, indeed, signed up to the final report, which was to include in her alia the recommendation that these hitherto excluded categories of people of individuals should now be included in possible grant of HDC, and I state again that HDC is by no means automatic. It is subject to a robust risk assessment on the grounds that I have explained. To what the minister said, I just wondered if the minister could comment on—there was a concern raised there about the scope and the breadth of the examination of the issue, but it is my understanding that the working group, as well as Scottish Women's Aid comprised the Prison Service Police, Independent Researchers, Social Work Practitioners and a representative of Scottish Women's Aid. It was encompassed 16 months of work, as well as looking at international evidence, so to me that seems like a robust and extremely thorough examination of the issue to bring a proposal from the working group. I made the point last week that there had been a substantial engagement, and, of course, the final report was informed not just by the statistics in terms of how those were made available to the working group, but also international evidence, other academic research, the engagement that Ben Macpherson talked about both at a national and local level, the actual expertise and knowledge that those individuals brought to their 16-month deliberation and included also, for the sake of completeness, in the lifetime of the working group with the Judicial Institute for Scotland, in addition to the members that Ben Macpherson raised. So, the SPS Head of Parole units, the Valence Reduction units, the National Fender Management unit, also Police Scotland Specialist Crime Division and the Centre of Youth and Criminal Justice. So, they really were available to the working group, a panel of experts in their field and front-line practitioners. I think that that illustrates the point well that Mr Macpherson made, that that was a very extensive look at this issue. Liam Kerr followed by Foto. Thanks very much, convener. It's following up, Stuart Stevenson's comments. I suspect that what we're doing here is managing risk. That's essentially what's at root here, and 6 per cent to me seems to be not necessarily the threshold of success. I'm sure that everybody involved would look to bring that figure down if they could. Nevertheless, I think that if we were to demand something approximating 0 per cent, we would be asking for a guarantee that seems unrealistic in most of the other endeavours that we embark on with legislation. However, I suppose that, as a Government, you will be looking to see how that operates in practice. If that 6 per cent were to nudge up over time with a change in the process, presumably you would look to see why that is and potentially make alterations accordingly. Would that be a fair assessment? I think that the member makes a fair point that we can't guarantee 0, we would like to, but in every human endeavour it is always very difficult to guarantee 100 per cent success rate. However, I think that the figures show that the risk is being managed very well indeed in relative terms. Certainly, those stats are looped at by officials on a regular basis. I would also add, of course, on a point raised by Mr Finnie last week, an important point that was raised in the working group of how we can better support individuals in the circumstances to facilitate compliance. There will be a demonstration pilot project on that very issue early next year in terms of current plans, so I think that that is an important element of how we seek to improve those rates further, as the member would like to see. Fulton? Thank you, convener. I think that, as an ex-criminal justice social worker, it would be remiss if not to challenge some of the perceptions that are perhaps around about HDC being an easy option for offenders. It is a very robust situation and it is a very crucial part of the process in allowing offenders to move from prison back to the community, as the minister has already said. I think that what members might like to know is that, when prisoners come straight out from prison into the community, the rates of free offending are much higher and the research clearly indicates that. It was more a comment for the record. Thank you for that. Are there any other comments or questions for the minister? Minister, do you want to make a closing statement? No, thank you. In that case, we move to agenda item number three, which is formal consideration of motion zero to one to seven, that the Justice Committee recommends home detention, car fuel, licence, amendment Scotland order 2016 draft be approved. Minister, do you want to speak and move to the motion? I've just formally moved the motion, thank you, convener. Any members wish to speak? Stewart Stevenson, John Finnie. I just remind members that the 1991 white paper that the Tories brought forward in criminal justice contained the memorable quote, that prison is an expensive way of making bad people worse, anything that keeps people and gets people out of prison is something that we should be supporting. Okay, thank you for that contribution and probably by way of repost, which is useful. I repeat that, given all the people and the report that we had before, I think that it's really regrettable that this wasn't the subject of a parliamentary debate on the wider issue of community justice and where this particular proposal, which has been brought under a negative, I'm sorry, affirmative SI, could have taken place. John Finnie. Thank you, convener. I'm conscious that there's been no attempt to curtail any debate, so I think that we've heard a range of views here and it's not that there's not been discussion. I have to say that the Scottish Green Party welcomed this proposal, strongly welcomed this proposal. It is about, as the minister says, it's an option and it's also reintegration. I also would be very concerned of any unintended offence that was taken by the wide range of participants who are behind this report there because arriving at this position might be seen as controversial by some people, I suspect, a small minority, but when you have people like Scottish Women's Aids who have the victims' interest at the forefront of all their deliberations, sharing that collective view with front-line practitioners, that makes a very compelling case for me, and I'll certainly be lending my support to it. Are there any other views from members? Right. I invite the minister to wind up. Do you wish to say anything around it? I entirely agree with Mr Finnie's comments. I think that it's an important point to put on the record that individuals from all the various spheres put in an awful lot of their time to do this, including important victims' organisations such as Scottish Women's Aid, and I think that their opinions are worth listening to. The question is that motion 02127 in the name of Annabelle Ewing be approved. Are we all agreed? No. There will be a division. All those in favour? All those against. There has been a division. I read the division and it was 8 for the motion 2 against. Since there was a division, are members content that, as a convener, I cleared the final draft report or would you prefer to see it before it is cleared? Content? Thank you for that. Right. The next item. Call for a brief. All right. We need a suspension to change witnesses. Thank you. On the agenda is consideration of affirmative SSI on air weapons licensing exemptions Scotland regulations 2016 draft. I welcome back to the committee, the minister, and also the officials accompanying her, Keith Main, Safer Communities Division and Carler McLeod Stevens, director for legal services with the Scottish Government. I refer members to paper 2, which is a note by the clerk. Ministers, you want to make an opening statement? Yes, if that would be okay. The new licensing regime for air weapons in Scotland is set out in part 1 of the Air Weapons and Licensing Scotland Act 2015. Implementation is well underway and, from 31 December this year, it will be an offence for anyone to have or use an air weapon without an air weapon certificate or permit unless they are otherwise exempt. Schedule 1 of the 2015 Act sets out various exemptions. Those reflect similar exemptions in the licensing regime for more powerful firearms and shotguns. That ensures consistency between the two licensing regimes, which is helpful to both the police, who are the licensing authority and the shooting community. The purpose of the draft regulations before the committee today is to add to further exemptions to schedule 1 of the 2015 Act. The additions are being made at the request of the Ministry of Defence and to replicate exemptions from the firearms licensing regime under section 16A and 16B of the Firearms Amendment Act of 1988. The first exemption covers the possession and use of air weapons by civilians, whilst on-service premises and under the supervision of military personnel. For example, it would allow a person to shoot air weapons without holding an air weapon certificate at a properly supervised shooting gallery, which is set up, for example, as part of an open day or a family or community event on-service premises. It may interest the committee to note that open days and other events take place at barracks and other military bases throughout the year. Such events are generally focused on recruitment, but they can also be aimed at military families or the wider community, helping to maintain important links with the local area. The second exemption covers the possession and use of air weapons on Ministry of Defence police premises by people who are undergoing firearms training and assessment under the supervision of Ministry of Defence police personnel. Both those exemptions relate to Ministry of Defence matters, which are considered to be reserved. The Scottish Government believes that it is appropriate to add those exemptions. It should be noted that Schedule 1 explicitly exempts other reserved matters from the regulation of part 1 of the 2015 act. For example, the possession and use of air weapons by members offered by the Majesty's Armed Forces and the Ministry of Defence police in the course of their duties. Those regulations, before the committee today, will help to make it clear who is and who is not subject to the new air weapons licensing regime. They reflect equivalent exemptions from the wider firearms licensing regime and are consistent with the other air weapons licensing exemptions that were set out in Schedule 1 of the 2015 act. Finally, given that shooting in such circumstances may only be undertaken under the strict supervision of military personnel, it is not considered that the inclusion of those exemptions should involve any adverse impact in terms of public safety. Thank you. It is just to make an obvious comment that I do ministry of defence police in my constituency guarding the St Fergus gas terminal, which is a part of the critical national infrastructure. I think that those police having the powers that are conferred by this piece of subordinate legislation, if passed by Parliament, is an appropriate thing for them to have. Liam Kerr, I think that I would want to note again the reservations that my colleagues have with the original legislation, but I think that the exemptions that have been brought forward under this statutory instrument are very sensible. Once we would support them. Notate any other comments or questions? If not, we move to agenda item 5, which is formal consideration of the motion in relation to the affirmative instrument. The motion is motion 0262 that the Justice Committee recommends that the Air Weapons Licensing Exemption Scotland regulations 2016 be approved. Minister, to move the motion and speak formally. Are there any questions, further questions or comments from members? If not, then I put the question that motion 0262 in the name of Michael Matheson be approved. Are we all agreed? Thank you for that. That concludes consideration of both affirmative instruments on today's agenda. I am asking the committee again, are you content to delegate authority to me to approve the final report? Thank you for that. I thank the minister and her officials for attending and I now suspend briefly to allow the minister to leave. Agenda item 6, sport and legislation, is consideration of five negative SSIs. The first is justice of the peace training and appraisal Scotland order 2016 SSI to 016, oblique 329. Do members have any comments on this statutory instrument? No, happy to approve. Once I've gone through the list, we'll see if there are all no recommendations or if there's anything that there wouldn't be. I'm taking them one at a time. I think that that's the easiest way to do it. Number two, court fees, miscellaneous amendment Scotland order 202016 SSI to 016 oblique 332. Members will be aware that the law society has made a submission in terms of this statutory instrument. Are there any questions or comments? Liam McArthur? As you noted, the law society has been in touch around this SSI, which is very similar to the one that we considered last week, raising many of the same concerns around the impact on access to justice. The Government in its papers confirmed that the consultation that it ran on this showed an overwhelming resistance to the increasing court fees. I know that we're operating to a reasonably tight deadline, because I think that the SSI comes into effect from the 28th of November. The law society raised some interesting points about even looking at the eligibility thresholds and how those bear comparison with inflation over time. I think that in their submission, they say that if they were forced to offer an opinion on option one, a flat rate increase, or option two, a targeted increase, the preference would be for option two, which is hardly surprising. However, if there is any time available to see how the Government proposes to amend these over time in line with inflation and the eligibility criteria thresholds, that would be helpful. My understanding to that specific point is that the committee has to 5 December to report to Parliament on all of those instruments. Therefore, the committee could consider the instrument again next week, if, as you suggest, Liam McArthur, we want to just put some of those points and take further. As I said in relation to the SSI last time round, I can understand why there's a resistance to increasing fees at any stage. It may simply mean that what we're talking about are modest increases, but the concerns raised in relation to the SSI seem to be more serious in a sense in relation to the impact on access to justice. If there is time available to satisfy ourselves, we are approving something that is as targeted as it can be against the backdrop of the Government's stated intention to try to cover the cost of court fees more effectively, that would be my preference. Stuart McMillan followed by Oliver McArthur. We certainly had a discussion on this, quite a full discussion on this last week. I think that the point that Liam McArthur makes is that it may be reasonable to ask the Government what its longer term intentions are in relation to progressing the agenda on full recovery of court fees, which was one that was introduced by the Labour Liberal Administration before 2007, and is clearly a long-term plan. However, I think that it would be perfectly proper to ask the Government how they are going to continue with that policy that was introduced by the Liberal Labour Administration. In view of the very full discussion that we had last week, we should not seek to delay this particular instrument. I think that we are stretching a point to say that it was a full discussion. I did express some reservations about access to justice considerations with these court fees, albeit that it was a very, very minor increase in the fees. I certainly welcome Liam McArthur's indication that we could find out a little bit more. Oliver McArthur followed by John McArthur followed by Rona McArthur. I fully agree with Liam McArthur. I do not know that we would be delaying it by looking at it if we have until 5 December. However, I think that it is perfectly reasonable to raise some of those questions particularly around the longer term plans. I feel that we only just got started on that issue last time round. Given the strong representations from the law society, we should make the time to consider it fully. John McArthur followed by Rona McArthur. I would like to place great store in the information that we get from the law society. I think that it is always very compelling. However, I have to say in this case that I thought that it was an extremely poor comparator that was offered up. The legislation that was enacted by the UK Government that saw fees introduced from £0 to £1,200 obviously had that significant effect. When I see changes like £7 to £8 to £100 for what is likely to be the bulk of claims, I do not see that as being in the same category. I have to say that the specifics of those are separate from the Government's overall plans. Liam McArthur makes a very valid point, and I am very happy to look to try to understand that. However, I always look for access to justice issues and protection of the vulnerable. When I see, for instance, there is no change to the adults within capacity regulations 2015, I see that those do not affect the increases that we agreed the legislation earlier on, the sheriff court appeal and the sheriff personal injury. When I read that those in receipt and fairness, the law society briefing, does say this, those in receipt of legal aid will not incur any court fees. In a top of what in some instances are very modest increases, there seems to me to be the same level of protection that I referred to last week. I am comfortable that we make a decision on that today, but, by all means, I try to understand the longer-term objectives of the current. We have got Rona Mackay followed by Ben. I have to agree with my colleague John Finnie and Stuart Stevenson. I do not think that there is anything terribly radical in the detail of those court fees that are being proposed, but I agree with the wider issue that we should look to see what the Government's proposal is. Given that this is the third time that we have been discussing this, I do not see any merit in delaying it and what we would achieve in the short-time spanner from now to December 4. I think that we should move ahead with it. Likewise, I see no need to delay while I appreciate the collective determination in the room to have a long-term analysis in tandem. John Finnie made the point that, while the law society paper does make some reservations, it also states very clearly that the legal aid scheme in Scotland also ensures that people eligible for the scheme do not have to pay their court fees. Also, if unsuccessful people who are legally aided do not need to pay the court fees of their opponent, I am going to make that explicitly clear and I think that that should be recognised. I think that one of the compelling things in the law society's submission was employment tribunals and the dramatic fall in people presenting there, which did seem to suggest that there was a barrier and that barrier was the increase in court fees, potentially. I propose that this is continued to next week to seek further evidence from our further response from the Government to properly tease this issue out. Last week, I raised the issue that the last Justice Committee made a very strong statement that it did not believe that court fees should be used to pay for the reforms. Substantial reforms are still not implemented on and further in the pipeline, so there are quite a few issues surrounding that. Are members content to continue to seek further? No, you are not content. Liam McArthur? I am trying to break the log jam that I have created. I understand from discussions with the clerks that, even if we were to seek further information, it would actually come into effect on 28 November in any event. It would simply just delay the process of approval in a parliamentary sense. I hear what John and colleagues have said in relation to the increases in fees. There is still a question as to why the law society submitted the paper to the committee so late in the day, but, if there is an opportunity to explore the issues that they have highlighted in their paper in more detail, I do not see the downside of doing that, particularly in light of the fact that it does not appear to be the case that it would delay the implementation of the SI in any way. Can I be clear about what you have been moving or suggesting, Liam? I suggest that we make no recommendation today along with possibly some of the other instruments. We are making no recommendation but yet seek another response from the Scottish Government to flesh out some of those issues raised or that we do not make no right. We will put that instrument to one side until we get further information from the Government. Why not first be to set it aside? I think that the overwhelming view of the committee appears to be that we press ahead with it. I think that the general context of cost recovery is information that we need to get from the Government. There seems to be pretty much unanimity around that. As I say, my preference would be to use the time that we have available. I had a fifth of December to tease those issues out. I am sympathetic to that. I am very conscious that John Finnie and I are the last Justice Committee. We, as a committee, have looked at a broad theme of access to justice and I think that there is no question that it raises potentially, not necessarily actual, when you actually get down to it, not necessarily the case, but enough for me to think that what Liam is proposing seems a reasonable way forward, John Finnie. I am a wee bit concerned that your continual reference to access to justice in an inference that your position on this is not to be supported that somehow that would mean that the individuals who took that position were not supportive of access to justice. Everything that I said in relation to my qualification of this and last week was about access to justice. Access to justice is to ensure that people receive protections. I outlined the protections behind that. I am very relaxed about it, but it would be very disappointing if there was a misrepresentation of the position of what was said in the last report. I think that it was really concerns about potential access to justice, which may or may not be realised. That was why, essentially, we are looking for more information, John Finnie. The issue that has been alluded to was employment tribunals. If you were outspoken, as I was, on the position to face to that, then that perhaps would strengthen your position, convener, but I do not recall that. That has been cited by yourself as a comparator. That was a UK-reserved issue that is coming to Scotland. I do not recall outpourings from you or your party about access to justice connected with that, and we have seen the dramatic effect that it has. I have outlined the protections that are there to ensure that access to justice will continue. I would be keen to make a decision today. Can I assure John Finnie that my comments are coming from the presentation that we have received, the written response that we have received from the Law Society, and the quite startling figures about the drop in people presenting now, year and now, hard figures as a result of the court fees. However, employment tribunals is a UK-reserved matter. Whichever it is, there has been a drop, and that evidence has been presented, and it is on the basis of that that I made my comments. Liam McArthur, are you moving that this is postponed to next meeting? Are you content? I am content to seek the wider information that we have sought. But I make no recommendation in the meantime. So that we may understand the second decision that we are clearly going to support. I think that what Liam asked for, which I supported, was asking the Government for the bigger picture about this. Where are they going after this with the recovery of costs, rather than narrowly focusing on the particular instruments? I am not excluding information on the current instrument, but I think that what Liam was saying was a bigger picture of stuff, so that the next time we find an instrument before us, we can refer back to what the Government then wrote. Just to be absolutely clear, that is what I think we are going for, and I would welcome others. Liam McArthur? I think that that is entirely accurate. Within that, what I would particularly like to see is what the approach is going to be in terms of the eligibility thresholds and how that compares with inflation over time. I think that the Law Society again raised some sensible concerns around the situation south of the border, where you can be at risk of over-complicating the set-up by subdividing thresholds and all the rest of it. I think that getting a clearer sense of where the Government plans to go in that respect would be helpful. I think that that is helpful. I reached, I believe, a consensus point that we make no recommendation, but a wider look at the whole issue of the court fees within the context of various issues that are looked at at the next meeting. Are we content to proceed in that manner? A consensus on this is only 10 meetings or so in. What does that mean? What have we agreed there? It goes ahead, but we get more information on the wider issue. For content, we shall move on to the next instrument, which is upper tribunal for Scotland rules of procedure amendment regulations 2016, SSI 201633. Do members have any questions or comments? No. I am content to make no recommendation. Number 4, tenant information packs. Is your tenancy Scotland amendment order 2016, SSI 2016334? Do members have any comments or questions? No. I am content to make no recommendation. First tier tribunal for Scotland housing and property chamber procedure regulations 2016, SSI 2016339. Do members have any questions or comments? No. Okay. If members have no further questions or comments, are we agreed that we make no recommendation on this last one and, in fact, all five negative statutory instruments? Right. Thank you for that. We now will suspend briefly to allow the first panel of witnesses in our inquiry to take their seats. Agenda item 7, evidence session for the Crown and Procurator Fiscal inquiry. This is our fourth week of evidence taking on the Crown and Procurator Fiscal service inquiry. I welcome our two witnesses this morning, Sam McEwen, justice of the peace in John Little, justice of the peace both of the sheriffdom of North Strathclyde. I thank Mr McEwen for providing written submission and Mr Little for agreeing to appear at short notice. The witness whom Mr Little is replacing was due to speak on behalf of the Scottish Justice Association, but I should make clear for the record that it is our understanding that Mr Little will be giving evidence today in a personal capacity as a serving JP, is that correct? Some of our questions might refer to matters in the SGA's written submission, and I hope that both justices will be able to comment on that written submission. I refer members to paper number four and paper number five. Right. Can I have questions from members, please? Who would like to start? John Finnie? Thank you, convener. Good morning, panel. Thank you for your written submissions and for attending here today. There is a suggestion of a lack of resources for the Crown Office Procurator Fiscal service and the impact that that has on your courts. Can you make a comment on how that materialises, please? First of all, thank you very much, convener, for asking us to come along this morning. We consider this to be extremely component. It was interesting hearing the last debate on access to justice. That goes to the heart of that. I hope that I have made it clear in my paper that, for me and for the vast majority of my colleagues, fiscals are the gateway to the justice system. The lack of fiscals has coincided with an increase in the number of direct measures, fixed penalties and fiscal fines, which I would contend to have more to do with number crunching than with justice, or perhaps even more importantly, if it can be more important, the ability of a judge at a justice-to-the-peace level or indeed any level to arrive at an appropriate sentence for some of the people that we see. What has happened with the... There is a shortage of fiscals. I do not think that anyone would deny that. Courts like Greenock do no longer have a dedicated fiscal, which means that cases are marked in the... There are two marking teams, one in Stirling and one in Paisley, and they mark cases, I believe, for all of the vast majority of the country, if not all of it. There may be one in the north of Scotland, I cannot be entirely sure. Cases are delayed. It leads to an unholy scramble about the court when there is custody. We do not have a fiscal, the justice is hanging around for three hours. More importantly, the person who has been lifted on warrant by the police the night before has spent the evening and the night in the cells, and has then brought to the court sometimes two, three in the afternoon. Once we have managed to get a fiscal to come down from Paisley and we have managed to find a courtroom, and I would remind the committee at this stage that it is highly likely that that individual who has been kept overnight has not been found guilty of anything. If I made, is that... Well, I am happy. I am not wanting to break your flow. No, no. If you do not mind, I will continue because I mentioned the drop in fiscal coinciding with fixed penalties. We see lots of people in the district court who are somewhere on savoury. An awful lot more are victims of life. They are adult with addiction. They haven't had the best of luck. They will appear in front of us now at what we call a fine enforcement court. We see people who are on minimum benefits, who are struggling with addiction and who present for the first time in court with values of fines stretching back years, many years in some cases, around... I can give you an example of people coming in front of me with £875 worth of fixed penalty fines. John John is an example here of well over a thousand. We see people with fines not being paid of well over a thousand pounds never ever having been in court. Those are people who have no money. You can give someone a fixed penalty for £100 and if they are suffering from the curse of addiction, it is highly unlikely that they will not remember. Without wishing to be disrespectful to those folk, they will not see £60 or £100 in the same place for very long if ever at all. There is no chance, therefore, with the fixed penalty scheme, to intervene, to take a look, to try to apportion that. If you are talking about sentencing, sentencing should be appropriate. I will shut up in a minute to say that I will give you six months to see how you behave, but perhaps it would be a good idea if you contacted alcohol services, that kind of thing. We cannot send people there, but we can strongly recommend it. Inverclyde, we have an agreement with the local AA people who will help to monitor that so that, when the individual comes back, we will know if they have tried to help their addiction. You can make sensible and appropriate decisions, rather than just dishing out fines willy nilly as happens today. Mr McEwen, I am sorry for baking your flow there. You have covered a lot of issues, and I am sure that colleagues will pick up my be on the alternatives to prosecution. Can I pick up on something that you said in your statement, please? Your remarks about and a quote here, planned erosion and support to the GP course. Could you comment on that, please? Since the failure of the McKinnis report to effectively do away with the justice of the peace court and replace it with, I think, what was called at that time would be deputy sheriffs, which is a wee bit like something out of high noon, but deputy sheriffs. That proposal failed because the civil service, the people in the justice department at that time in McKinnis, failed to realise that the justice of the peace in those days tended to be appointed by a tap in the shoulder, usually from political parties. That is how I became a justice of the peace. My late father was a justice. He was also a councillor locally, so that is where it came to me. I had served in the children's panel for a while, and the tap in the shoulder came when I was of interest, and I did it. What McKinnis and his officials forgot was that once you have political contacts, you tend to use them. All of a sudden, the then minister for justice cannot remember who it was was being assaulted in the tier room by people saying, hey, hold on a minute. I have just appointed Mary and Joe Bloggs as justice of the peace. They are good, solid citizens, and all of a sudden their opportunity to be volunteers in their community has been taken from them. It is important that everyone knows that as justices of the peace, we are volunteers. We do not take salaries. Some of us do not even take expenses. We do it because we believe in the concept of local justice and lay justice. We do not pretend that we are sheriffs. We do not pretend that we are high court judges, but what we do very well is to deal with the issues that affect our local citizens. We try to handle that appropriately. Since McKinnis, and I remember counselling my colleagues at the time, and John will verify that, while we can celebrate the victory, civil servants will always come back and try to get their way. That is what has been happening, in my view, over the years. Less and less cases are coming to court. My first case in those days of young justice was an assault—I do not know if any of you know Old Greenock, but then we had a ballroom in Greenock called a palladium ballroom, which was for ladies and gents who perhaps had missed out on the finishing school experience. The three young ladies had decided that it would be a really good idea to assault a young man with their stiletto jules. It was an interesting case. It was an assault. We used to regularly get assaults since a serious nature—I laugh now when they talk about maybe giving domestic cases, some domestic cases to the GP court. We used to have those as well. We did all sorts of things. Your court would run from a Monday to a Friday. John and I used to share the court with two days on, and it would be trials just about all the time. We started at 10, and you would finish at 5. Nowadays, we do not see that. The numbers have dropped, and the reason the numbers have dropped is because the cases have been handled by direct measures. On going to the erosion term and the importance that is placed on local justice, your evidence talks about not being a local fiscal. Can you explain what the impact of that might be? There would be a fiscal based in each court. Local justice, as the name suggests, is based on dealing with issues of which have a local aspect. If I can give you an example, if you do not mind it, it is a very recent example. Inverclyde, as lots of communities are, has gone through a time of change, shipbuilding has gone, engineering has gone, apart from Ferguson's. The electronics industry is all but away, so it is hard, as it is in many communities throughout the country. Councils are working hard to try to revitalise and the housing stock has been improved greatly. I used to sit on the board of Riverclyde homes, so a lot of public money has been spent providing housing for people. Vandalism would become an issue in anti-social behaviour in vandalism. To a high court judge or an appeal judge, vandalism in Greenock is not really top of the list, nor should it be. To someone who lives in the community and judges people within the community, we understand exactly what that means to the people who live there. A local fiscal would also know that. When a case comes in front of the local fiscal, whoever they may be, they would look at it and think, well, hold on a minute, that is an issue. That is an issue for that particular area and the vast majority of law-abiding people who work there, who live there a bigger part and their lives are being blighted by that. In that case, it would not be a fiscal fine that would be dealt with that. That would then be passed to the court, justice would hear evidence and if the verdict was guilty, sentence appropriately. What does appropriately mean? It means that the victims of the vandalism and the anti-social behaviour see that it is being taken seriously and being addressed. Appropriately also means that sometimes that can make you unpopular as a justice, but the fines perhaps handed out, the compensation packages handed out, are in line with what the means of the individual are. There is a sensible balance struck between taking care of our law-abiding citizens while letting our less law-abiding citizens be made aware that it is not acceptable that we need to do something. They will feel a bit of pain in their pockets if they do not cease and desist their anti-social behaviour. A local fiscal is vital to that. If you sit in Paisley and you have a big pile for Aberdeen here and another big pile for Inverclyde here and Perse over here, you are just going out. The issue that members might want to take questions. If it is a very short supplementary, it is a very narrow point. Sam McEwen referred to fixed penalties. I just wanted to be clear that the problem that was being described is related to them being imposed on people who had no means to pay. Therefore, is it being suggested that fixed penalties do not come from the Crown Office and Procurator Fiscal Service but from the legislation of this Parliament? Is it being suggested that one of the tests that must be applied before a fixed penalty is offered to an offender is that they have the means to pay? There is probably a general view that public order, particularly Saturday nights and Friday nights, is much served by the police not having to take hours out and take people back when it is perfectly clear that a fixed penalty will do. Is it that narrow point of people who cannot reasonably be expected to pay? Is that an issue we as legislators should be looking at, rather than perhaps this being the Crown Office Fiscal Service? I heard this legislation as it was at Westminster at the weekend. We had our annual conferences of conveners aware at the weekend, and both the share of principle and the Lord Advocate mentioned this. I will leave the political niceties to you guys who would pay to decide that. It is a seriously flawed notion that justice is served by fixed penalties. If there is not enough police on the streets to handle it, Greenock is not a cesspit of violence on it at the weekend. It is a nonsense to say that law-abiding people are being best served by fiscal fines or fixed penalties. Now what happens? I was always brought up to Mr Stevenson not to make faces when other people were speaking. Fix penalties are given. Let me give you a real example. A chap recently said that £875 worth of fixed penalties have never been to quote £475 worth of those fixed penalties were given to him in half an hour. Naaman is an alcoholic. He is one of life's victims. He thought that he was enjoying drinking in the street. A police car passes. This is not a criticism of the police. I see a lot of police because I am about half three in the morning listening to requests for search wands for them. I live there. I know exactly what is happening. He gets a fixed penalty of £100 for drinking in the street. The same police car comes back 15 minutes later and they give him another £100 for drinking in the street because he does not care. He is an alcoholic. They come back 15 minutes later and the same gentleman is more than topped up when the alcoholic is already in the system. This time, when the police constable gets out of the car, he decides that he is going to give them the benefits that he is experiencing and is abusive to them, that then becomes a breach of the peace and it is £275. If £475 in fixed penalty fines given to an alcoholic is a good use of people's time in half an hour, that is disappointing. On another matter, I think that it is important. I stop you there. You have answered the very narrow point that Stuart Stevenson has brought up and answered it very well. You have got ample opportunity to come back in. It is simply to me. I have made a ruling that you have ample opportunity to come back in later and continue this further. A supplementary should be very direct and short. You will have the opportunity, Mr Stevenson. I am now moving on to Liam. I am giving you a point of order. My personal integrity may have been called into question and I just want to make clear if my facial expression was misinterpreted as being hostile to the witness, that was not my intention or my belief. I think that it is important to say that now. Mr Stevenson, we do not have a point of order in committees, which I should have stopped before you said any more, but you have said what you have said, and I am sure that we have all noted it. Liam McArthur. It would not help Mr McEwen, thank you very much. I think that we have dealt with that point. Mr McArthur. Convener, I am just returning to the point around centralised marking, which I think that you were referring to Mr McEwen in reference to the lack of a fiscal in Inverclyde. That is a concern that has been raised with us by a number of witnesses that we have heard from over the past few weeks. In terms of your written evidence, you point to some of those concerns about the listening of local knowledge in terms of dealing with individual incidents. Could you perhaps offer the committee, or both of you, a way of securing the benefits that centralised marking is perhaps delivered in terms of administration or possibly more in terms of the specialism that is brought to certain cases? With retaining that local knowledge, which it seems apparent, has been diminished and perhaps undervalued, what would be the way of striking the right balance between what we have at the moment and what perhaps we have lost in the move to that more centralised system? I had an opportunity to speak so far to speak. I would be grateful if members' questions and the responses could be a little more succinct, because we have a lot to cover. The fundamental problem with central marking is that we all understand the constraints that every area of business and public service is under. There seems to be a little recognition of local issues, whether it be here or in the west. As one sheriff said to me on occasion, he said, Do you believe that I am not aware of what the issues are? He says, I have piles of letters from the community telling me that they are unhappy with the sentencing. If I could just go back, I have one issue here from three years ago. This is an actual instance. A young man, I was told, was in custody. I said, that's fine. He's at the hospital. We don't know what the problem is. Cut a very long story short, at two o'clock in the afternoon, that young gentleman appeared before me, shackled between two officers, with two police officers facing him in case he kicked off. He had been causing all kinds of commotion in the cell. The agent stood up who was the court-appointed agent and said, Your Honor, somebody is going to have to do something about this. I said, I couldn't agree more. This young man had 10 fiscal fines. Two police fines had never seen the inside of a court building. It was abundantly obvious that there were mental health issues. The one thing that a justice of the peace is not supposed to hear is mental health issues. It's the only thing in our guidebook that allows us to refer a case immediately from our court to a higher court, i.e. the sheriff court. We discovered that this young man had mental health issues. His mother had been trying to deal with the problems. Under the old regime, regardless of what offence he had committed, he had a port that would have appeared before me, an agent would have stood up, outlined the background and, immediately, sentence would have been deferred for three weeks for a social background report, and he would be in the system. He had a young man sitting with a huge sum of fines and had never seen the inside of a court building. Madam Chairman, I don't know if you were there when I raised the issue with the Lord Advocate on Sunday, wasn't it? A week past Monday, a pile of paperwork was put on my desk in the chamber asking if I would reduce the number of fines on an individual was £1,800. Going back to 2008, all fines from December 2010, as far as Greenock JP Court was concerned, had to be remitted because none of the paperwork had transferred from the old district court system to the justice of the peace system. I usually remitted everything prior to 2015. There were £1,800 involved. Mr McEwn has outlined the type of people who were getting with us. It has become an easy marking issue. We do not have the resources to put them into court, so it is £400 fines. I have a person who appears before me in whatever matter. If I find guilt or plead guilty, I must offer a 30 per cent discount. People are being handed £400 fines—actual fines. I was not very good at mass, but in that case that would be me handing down a £700 fine, which I then get down to £400 with a 30 per cent discount. You are relating that to Liam McArthur's question about central marking. Central marking, all the stuff at a certain level, because the resources are not there to bring any of the stuff to court, the police finds that a different issue, because they are giving them the street. This is somebody sitting in an office who is looking at cases at a certain level and deeming that we do not have the resources to put them into court and that it is being removed by. I heard you making the comment—or maybe Mr Stevenson—that a decision had to be made. Was this appropriate? I do not think that that is happening. Just to be clear, from what you are saying and from your evidence, Mr McHugh, the preference would be to return to a localised marking system, potentially with specialist input in certain cases where necessary, is that it? Absolutely. Thank you for that. We now have Mary Foylodd by Rona Cymru. The earlier question that I had was covered by Stuart Stevenson, but it was also to look at victims of witnesses, so that was not really much touched on in the evidence, but I was really just curious as to what the experience of witnesses and victims is in the JPE courts. Do you think that they tend to get the support and the information that they need when they attend? I think that the answer is to a degree. You can always do better. You always have to be very, very aware that anyone who comes to give evidence to you is in a pressure situation, and that applies to the police as well. You see young and experienced policemen come in looking extraordinarily nervous to give evidence. I think that the recent changes that allow people to come in and give evidence behind screens and to work with technology is a real step forward. It is one of the many steps that the Scottish Government has made in recent years. It is very outward looking. I think that what you are talking about, to a certain degree, is the ancillary. Can I knock on from the justice system? The Scottish Government has been very good at that. It is things that the Scottish Recovery Council has said to him. It is a notion of building smaller prisons, so it keeps family units close by. I think that there is a tag more humanity being shown than perhaps was shown in the past. You can always do better, but we do take great cognisance. One of the points on local justice is that if you take a very simple case for the benefit of this discussion, if you are a gardener and you take great care of your garden and stuff like that, and someone comes on and ripsher plants out, that is important to you. That is the sort of things that we see. That is important to you, so you have to be mindful that it may just be some plants to some people, but to that particular man or woman, it is their garden, hobby and home, and you have to bear that in mind. You have to take cognisance of that when you are dealing with it. It does not mean that you get the burpsher out, but it means that you take an appropriate sentence. As I said earlier, so that the individual concerned can see that we care about your quality of life and, equally, the individual who has caused the damage understands that, listen, cut it out, you are going to be punished, do not be back here, so there is a balance. I think that we are getting better at it. It is something that we spend a lot of time training on and communication in the court and control of the court and making sure that, if a witness is being hesitate to use the word to rash, but perhaps put under pressure by the defence, we take a view on that. If someone has asked the same question three times, we are very quick to say, listen, I got the answer the first time. Indeed, I emphasised at the same time. I do not really need to hear it three times. The experience justices amongst us are good at doing that, I think. Heard evidence from some of the witnesses and people who dealt with people like Viya, and a very mixed experience there, so I am glad to hear a bit more positivity on that front in terms of the JP service. I think that there is a way to go, and we have to understand as well the sheer pressure, the physical perhaps. People feeling that, if I give evidence here, my windows might come in or something like that, I think that we have to be very mindful of that. I think that we are, but again that is so helped if everybody in the local area understands what the issues are and understands the different areas where windows might come in, if evidence is given. We can do better, but I think that we are trying hard to be better at it. Rona Fyldon, followed by Fulton, can I again ask members to keep their questions short and the witnesses to give their answers as succinct as possible? Thank you, convener. It is a question to Mr McEwn. You are clearly not a fan of fixed penalties. I wonder if you could expand a wee bit on what your alternative would be, because I am struggling to understand how anything else would not impact adversely on an already overworked system. If you could expand a wee bit on how you think that could be done and also would you support perhaps a threshold on the number of fixed penalties that an individual could get to a level of, say, five, and then it could be something different? I am not sure that I can keep this. I will do my best, convener. I am not sure about the level to take the last part of your question first. I go back to my point that I made earlier, and I hope that if you have not got any money, finding you £100 is not going to do you any good, because you are not going to pay it. You do not have the money to pay it. You do not have the lifestyle that would motivate you to go and pay it because you are too busy trying to perhaps get your fix for that particular day. All a fixed penalty does is encourage you to go out and steal bone money so that you... So it is not... They encourage criminality. They do not, and they are not in a lot of cases. What run am I trying to say? Is there ever a place for a fixed penalty or is your position that they are being used inappropriately because someone clearly cannot pay? I think that there can be places for them, yes, but it needs a careful judgment to be made. I make a point in my report about people using mobile phones while they drive. If anybody thinks that fixed penalties solve that, they are living in Mars quite frankly. It does not happen. Just go and stand in the street corner and walk. But there are occasions where people who would be identified perhaps within the local community is not being regulars at court, and it may well have a salutary effect. You asked what would the alternative be. We used to have a perfectly good alternative. When people would come in front of you in court, if they were found guilty or played guilty, you would then put a fine in place, commensurate with their means, and you would impose something called the alternative. I will be keeping this very, very simple, but the alternative would be that seven days in prison equated to £100. Seven days in prison equated to £100 fine. Now, people throw their hands up and say, well, we can't assign people to prison for seven days, and that's absolutely correct, and we didn't quite frankly. We did not do that because what would happen was if someone appeared in front of you and said, I want to pay this up, I want to pay it up at £5 per week, okay, that's acceptable to the court, and I'm going to put the alternative on. Now, the individual knew what the alternative meant, so if they missed one payment of £5, the police would go to their door and they would go to prison, but that never happened, Ms Mackay, because you weren't looking for £100 all at the same time, you were looking for a fiver, and what happened was that the family would chip in, friends would chip in, and it would be paid, and the fine repayment moved on. So that was a very suitable alternative. Six penalties takes no cognisance at all of the means of the person who gets it, so you can give them five or you can give them ten. It's taking no cognisance of their ability to pay. I still can't quite see how the court system in general would be adding to the workload of people like yourselves and then at a higher level if you did that. I think that was perfectly appropriate then, but perhaps we need to move on from that. I understand what you're saying about the deficiencies of the fixed penalty system, but I'm not sure that there's a viable alternative, so we should lessen the workload on the courts. I'll try to help with the efficiency aspect if I may. It was a one-stop shop with the old system. Now what happens is that fixed penalties are dished out, they're not paid, it mounts up and mounts up, people monitor that. The fine enforcement agency has been created by the Government, staffed with people who all take salaries and benefits and live in work and buildings and in car costs, as any organisation does, and they chase and chase and chase, but they're chasing people who have chaotic lifestyles. Is the point that it's maybe going back to the central marking that it shouldn't have been a fixed penalty in the first place? There might have been local alternatives, or referrals, or things that could have been used to answer Rona Mackay. Is there any alternative to stopping this clogging up the courts or is that not the case? It does go back to central marking, convener, but it also, Ms Mackay, has asked me about efficiency. If you bear with me, I realise what he's doing at your time, but bear with me, because this is very, very important to the wellbeing of the people that you guys represent and my fellow citizens. The fine enforcement agency can't get the money, because the money's not there, and then what they do is repair it to us in court, and we get a request from them to do one of three things. We can remit the fine completely—all the fines complete, just remit them. We can give the fine enforcement agency permission to access the individual's benefits so that benefit deductions can be taken, or we can bring them to court. You might think that the second option is a way forward, but, as part of our training, we have had people from the benefits agency come in, speak to us, and they have made it patently clear that you can remit as many applications to us as you like for people fine enforcement agencies to try to access benefits. We know the full financial position that these people are in, so they know about housing costs, they know about doing it as their children involved, they know they've got to feed themselves, they know exactly how much money they're getting, they know what other debts they have, and the answer was—I'll paraphrase—fill your boots because you're about seventh in the list and we're never going to get to you. So the fine enforcement agency does not work, so there is an inefficiency with the system that we have today, which was not there in the old system. The old system involved—remind everyone—of a justice who has not paid a volunteer dealing with an issue on behalf of his or her local community. Does that help? Yes, thank you. We now move on to Fulton MacGregor, followed by Alderman Mundell. Thanks, convener. Rona Mackay has actually asked my question, but as a follow-up to that, I would just ask the justice of the peace of witnesses, thanks very much for coming. If they believe that every offence, or more or less every offence, because you did say that there was a place for direct measures, should come to court and do you think that that would have an impact on the number of people who would develop criminal records when maybe the direct measures would have avoided that being the case? I think that my view on the fixed penalties is that those very senior in the organisation should try to tell us that, effectively, nobody should have more than three or four fixed penalties before, obviously, appearing in court. Of course, that is not happening, because it is the easy option to take your point. I have got one example. I have just given you an example of 18. I understand that. I take your point about trying to avoid criminal records for those cases, where there really is no great need to do that. The term would be restorative justice, where the person is put on some programme, and that is being used at the moment. A lot of our court cases end up with what is called community payback order, but, of course, what we find there is that the social work departments, the local authority, because they control that, are having great problems just now in our area. I understand that they have employed a few more people, but that is where, rather than just handing fines should, there should not be a matter where the fiscal service is directly referring people, particularly after they have had two or three fixed penalties, getting them straight into our third system, so that they can get into a programme that gets them up out of their bed in the morning, shows them how to work, helps them to organise their finances. I think that that would be a step forward. We do not get this large amount of fixed penalties. What we get is the fiscal service saying, look, we need to do something with this, we cannot afford the cost of bringing it into the court system, but we divert it so that the people try to get some practical help of how to organise their life, because, as Mr McEwn said, we are dealing with all these people where it is chaotic lifestyle. The person who commits a traffic offence sitting around this table, we have either done it or we are not, and if we have, we get a fixed penalty, we pay it, and the matter is resolved. It is where people do not have the facility to either pay up a fine because that is an issue, or rather than just willy nilly, it is easy to do that, get something in place where, after two or three fixed penalties, they are put into a programme that tries to help them to deal with their life. We all understand that it is easy for me to sit and say that it is a totally different matter, getting that to work in the real world. If we see someone who is perhaps a young person in front of us or a trained justice and experienced justice, we are mindful of the damage that we could maybe be doing here if we do not dispose of that correctly. The vast majority of people that we see, Mr McEwn, have very long criminal records. We need to try to find a way of getting them out of the system and into some sort of restorative justice, Mr Lutto. I think that that is what I was trying to clarify, because what I was hearing earlier, and I think that you have alleviated my concerns with that, is that I actually thought at one point that you were saying that almost every day should come to some form of court, and I do not believe in what I have heard that you are indeed saying that. Of course, there are restorative options that are used and perhaps local knowledge. Of course, a community payback order to be on a community payback order does involve being convicted of an offence, so if you are on a community payback order, you would in turn have a criminal record. I think that I am kind of happy to leave it there. We have really spent a lot of time talking about fiscal fines and fixed penalties, etc. There are very important issues in the Scottish Justice Association's presentation, routine evidence, which I hope we can cover, Oliver Mundell. You will be pleased, convener, because I was hoping to move away from fixed penalties and look at some of the other issues. The first question was about readiness for trial. It is something that has come up in some of our other evidence sessions, and I think that it is touched upon briefly in some of the written submissions, but there seems to be a general sense that there are cases coming before courts, where they are just simply not ready. Is that something that you have experienced? Let me begin by saying neither on Mr Little nor I speak on behalf of the SGA. We are given the opportunity to be here and I believe for reasons that I will not go into at the moment, but they have decided to withdraw their representatives. We understand that you are here in the personal capacity, but we did hope that you would be able to speak to some of the issues that were raised in the association's written submission. None of this is a criticism of the ffiscals. I have been around here for 25 years doing this, and at that time the fiscal service is hardworking, dedicated people. They are pushing water up a hill just now, there are so few of them, but she can go into court and it can be a wee bit disorganised because of the work that each ffiscal has to take on. I have to get them out of Paisley, Greenock and Kilmannock. They have to get organised, they have to talk to defence solicitors to hear please, change of please, all that kind of stuff. So, yes, things can be and are being delayed, cases have been delayed being brought to court, and the ffiscals are under huge pressure because there's not enough of them, so that delays the process further because they will ask for a continuation, and it's then for the justice to decide if they grant that continuation or not. But yes, it is a problem for the ffiscals as well, I would contend. Does that help? Does that answer your question? Yes, I just wondered, has it got considerably worse? Oh, absolutely. And given your 25 years experience, can you identify a point or a sort of timescale in which it's changed? I think that when we moved to the Scottish Court service, I think that the district court would highlight that would be the turning point. It's important that we're all professional, but I think that there's been a real effort to perhaps over-professionalise the task with less resources. I would think about that then. Do you see people under stress that ffiscals are under a bad time? Elsewhere in your own evidence you talk about a lack of experience resulting in delays around whether or not to accept please again that's something that we've heard from other witnesses at the committee. Do you think that there's a definite sense in which that's the case? I mean, absolutely. It comes about, and I would contend, because if you're a young person today coming out of university with a law degree, I think that it's fair to say the best thing the fiscal service can offer you by way of a career is a three-month contract, so you're not going to hang around too long. That may not be the most attractive option to you. It's like everything else. When you start off as a justice of peace, you're not very good at it. You might tick all the boxes, but experience counts are a lot. Likewise, with a pf, experience counts are a lot. With new people coming in on three-month contracts, there's a churn. There's no continuation of employment. That's the sort of thing that plays its part. Some other witnesses have suggested that there's almost a sort of fear of making the wrong decision and that people can't get in touch with a superior to clear a decision in time. They either can't contact that person or don't feel able to for various reasons. Do you think that there's a truth to that? It's very true, so I've seen it. It's absolutely so. You're giving an inexperienced fiscal a decision to make that they have no experience of training and making, and they do, frankly, the right thing. It would be the wrong thing for the fiscal to do, would be to try to make a decision that he or she is not capable of making, but what they do is try to get a hold of someone more experienced and there's just not enough of them around. I've seen it. It's absolutely happening. Finally, you mentioned that there's a number of cases that end up being time barred because they're not being seen in time. Do you think that that's—I understand, obviously, the different levels—that that's something that's happening across the board, or is it mainly at the JP end of things where cases are being time barred? I don't know what the actual figures are, but I have, as has Mr Lytton, I'm sure, had experiences where cases are time barred and they just have to fall, or if they are to be continued on that day because all the information is not there to prosecute them on that day, it goes out with the time bar. I think that it would be a brave fiscal who time barred a case in the sheriff court to a lot more weight than we do, but it is going on, Mr Mundell. I'm not saying that we see hundreds of them, but it is going on. Cases do fall because they're time barred because the ffiscals don't have the facilities, the resources to handle them within the time limit. You find this particularly incited quotes where the term not called will come up with some degree of regularity, and I'd appreciate a lot of them. It depends when, will they use the word serious or not, but mobile phones, which they want to prosecute, but because it hasn't got down the chain fast enough, they suddenly find they're sitting there with something and you can see them working out the dates to make sure that they've got it's out with the six months and it's time barred. I could just maybe ask you a little bit about something that was in the SGA report that highlighted the issue with regard to the lack of administrative support for ffiscals and perhaps that resulting in, I think, was it Mr McEwen's presentation where people may even hand in something and it doesn't actually appear at the end of the day when the ffiscals presenting the case, have I got that right? Recognise that from my own. Not from your. The SGA certainly said that a lack of administrative support was adding to the chung in their submission. I think that the assumption there was that procurative fiscal depths could sometimes indicate readiness for trial, which was based on an expectation rather than fact. I understand the point now, convener. I believe that the SGA would be talking about something that we all experience at Somers Business as usual, where there is responsibility on the fiscal to give what we call disclosure to the defence. That is that the prosecution service must give all the evidence and all the contacts for the evidence to the defence to allow the defence to reconnoiter the witnesses against their client. There are delays caused because disclosure has not been made, and that can be CCTV footage, which seems to be the favourite one. That would be, when I think about it, to back up staff to the ffiscals. There was only one final question that I think we hadn't really covered, and you mentioned that you deal with domestic cases, domestic behaviour cases, almost breach of the peace. In your experience, we've heard from other witnesses that maybe they are going to trial when there is an insufficiency of evidence. Is that an issue on the justice of the peace court? We used to deal with these in previous years, and the decision was taken at a point in time that domestic abuse cases would all go to the sheriff. We heard at the weekend that they were talking about bringing back the lesser end to our court. We haven't really seen anything much of that. It's been the sheriffs who have been dealing with that matter in recent years. I tend not to see a lot of that, to be honest. If there are any further questions, it just remains for me to thank both witnesses very much. It's been hugely valuable to have your contribution to this debate, as sitting justices in the court, seeing on a daily basis what goes on. My attendance here is caused by a lot of concern and interest among the hierarchy and the sheriff principal. Indeed, the Lord Advocate himself mentioned it to me on Sunday that I was coming here. In conversation with the Lord Advocate about the issues that we've discussed today and fixed penalties and so forth, he mentioned a figure. The figure is very low, he said to me, and this is an extremely capable man, as you all know. I said to him, James, I don't recognise those figures. They are way, way low. He said, no, no, I'm sure. I said, James, they're not. The figures are low now. He was talking about something like 9,000 to date fixed penalties that had ended up in court. When he mentioned that from the day I said that he was speaking to the audience, it was uproar, absolute uproar. He was accompanied by Justin Farrell from the PF service, and Justin was asked, where did he get the figures from? The figures that are being bandied around by sheriff principals, the Lord Advocate, given to them by their officials, date from 2006 to 2007. The Lord Advocate and others were placed in a position where they were trying to argue a case with statistics that were almost—well, they are, in fact, 10 years old. I think that it's very important. I'm educated that people get out of their silos, stop being defensive and let's try to offer a justice system that actually works for everyone. I think that the point about fixed penalties and your concerns have been well noted and well covered today, and I thank you both very much for your appearance before us. We now have a brief suspension to allow for a change of witnesses. Welcome to the committee today. Our second panel is Bernard Higgins, Assistant Chief Constable for Operations and Justice and Chief Superintendent, Gary McEwan, Divisional Commander, Criminal Justice Service Division Police Scotland, and Eric McQueen, Chief Executive and Tim Barraclough, Chief Development and Innovation Officer with the Scottish Courts and Tribunal Services. You're all very welcome, gentlemen. I thank you for your written evidence, which is always very much appreciated by the committee to have these written submissions. I'll move straight now. There's a limited time, and if both questioners and respondents could be as concise as possible, that would really be appreciated. I'm going to start with Claire Baker. I'd like to ask questions, particularly to Police Scotland. We've had a number of witnesses during the inquiry who have talked about the way in which domestic abuse cases are held. There have been claims made that the police are arrested in too many cases and that, when cases are going to court, they are going with insufficient evidence. The second point has been refuted by the Procurator Fiscal Service. In terms of Police Scotland's role, there have been a figure put around that 50 per cent of cases end up in court, and that has been used as justification for arguing that some cases are inappropriate police involvement. Last week, Marsha Scott from Scottish Humans Aid described the situation. Marsha said that it is a big mistake to assume that, because someone was lifted and not prosecuted, there wasn't a very good argument in terms of safety for lifting that guy for a short period of time. I was wondering if the officers here today could comment on the role of Police Scotland, the approach that has been taken towards domestic abuse, and some more explanation of the 50 per cent figure that has been banded about recently. I am happy to take that question. First, I would like to say that Police Scotland, for many years now, has been committed with a number of partners to tackle domestic abuse and to support the most vulnerable in our communities. It is true to say that, in years, we have taken a very robust approach to dealing with domestic abuse offenders. That is in conjunction with the Lord Advocate's guidelines on how we should approach that. In terms of insufficient evidence, there is a clear distinction in the role of the police and the Crown prosecutors. We might have a sufficiency to arrest, but for reasons that for the Crown Office, they might decide not to prosecute. That does not necessarily mean to say that people are getting arrested for no good reason, far from it. With the convener's indulgence, I will give you some figures that you might put into context. For the period of last year, from 2015 to 2016, the police dealt with 58,000 domestic incidents, of which 51 per cent or 29,000 reporters were recorded as criminals. Out of those 29,000 people who were arrested, 34,000 charges were subsequently libled against individuals, so one person might have had multiple charges. At the last reckoning, that led to a 80 per cent conviction rate. By any stretch, an 80 per cent conviction rate is pretty high. Having 58,000 domestic incidents and dealing criminally with about 51 per cent of them shows that there is absolutely an appropriate and proportionate response to police when we call to it. The notion that every time we are called to a domestic incident that we have to arrest somebody is simply not the case. The officers will go to each individual circumstance and make a professional assessment of whether or not firstly a criminal act has happened, because lots of times we are called to domestic incidents where there is no criminality. If there is criminality, they will investigate that as they would any other crime, and if there is a sufficiency, they will arrest. The prosecutor's decision then rests with the procurator fiscal. That is very helpful. Do you recognise that domestic abuse is still a hugely unreported crime? Is that the experience that Police Scotland would have in regards to that? Have there been issues with the cultural shift that has been necessary within Police Scotland and possibly other bodies and authorities who deal with domestic abuse crimes to recognise the severity of the crime and the importance that the Scottish Parliament and the country put on recognising it as a serious crime? I would agree with you. I cannot recall off the top of my head, but I do remember at one occasion the statistic that somewhere between 15 and 20 times a person will be a victim of domestic abuse before they report it to the police. I may be incorrect with that, but I do recall—this was a number of years ago when I first read it—that that struck me as a very high figure that somebody was a repeat victim of some form of domestic abuse and generally reached that point where they could no longer take it before they involved the police. Many years ago, the police services recognised that and worked with the Lord Advocate's advocacy for victims. We really refocused our approach to domestic abuse to make it a victim-centred approach. Part of that victim-centred approach is to remove the offender from putting that individual in greater risk and greater harm. Yes, absolutely, as well as wrapping around a care package around the victim, part of the strategy was to remove the offender from that environment. I thank you for that clear statement, because I have been concerned about the way in which some of this debate has been conducted in recent weeks. It arises from the Committee to Inquiry, and I am pleased to hear the strong support from Police Scotland on that issue. We have Rona Mackay. Just to clarify following up before I ask my main question from Claire's point, is it accurate to say then that Police Scotland operates a zero-tolerance approach to domestic abuse? At this moment in time, if there is a sufficiency to arrest, we will arrest. That is the agreed protocol between us, Crown Office and Lord Advocate. If Police Scotland is satisfied that the Crown Office has the sufficient resources and the skill to successfully prosecute the complex crimes that we are seeing today, such as cybercrime, corporate fraud, human trafficking and so on, do you feel that this has been adequately dealt with, and do you foresee any problems with on-going increase in that side of things? I think that it is a really valid question, ma'am. It is not just the Crown Office, it is the nature of the criminal justice environment that we all have to adapt to the changing nature of crime. For within Police Scotland, we have a cybercrime unit, and we have bespoke units that deal with domestic abuse and sexual crime. The terrorist threat is very high on our agenda, and, like other partners, my understanding is that Crown Office has reorganised to reflect that. We now have specialist prosecutors who will look at homicide, cybercrime and sexual abuse. For many years, we have had specialist football prosecutors. From my perspective, the Crown Office appears to be reacting to the change in environment and restructuring to meet that demand. John Finnie, followed by Liam McArthur. I thank you for your evidence. Police Scotland has been rightly placed for further approach to domestic violence. One aspect, in particular, is the investigation of historic cases. Can you explain the relationship between an individual being arrested, the requirement for them to appear at court, and the inquiries that Police Scotland would undertake to understand if that is a pattern, a behaviour that has taken place with previous partners or other relationships, please? Yes, thank you, Mr Finnie. Sadly, it is not an uncommon scenario that you have painted. We have a number of individuals who will identify and pick on vulnerable and weak people, and they will do it over sometimes decades, and not only a single victim, it could be several. For that reason, the force has set up its domestic abuse task force, and that supports the divisional domestic abuse units that we have, but our domestic abuse task force takes on what you would call the high-end offenders who will have a repeated behaviour where they will go out and target individuals over many years. When we arrest that particular individual, there will then be a retrospective inquiry where we will identify potential previous partners and go and speak to those individuals to see if they were a victim as well. It is very time-consuming, it is a very sensitive and difficult inquiry, but it is very much worthwhile. I was trying to understand the relationship between that arrest and the individuals who were arrested safe for the first time. Given what my colleague Claire said about the level of anticipated underreporting that there is, what would trigger that historic abuse inquiry? Would that be in conjunction with the Crown Office Procurator Fiscal Service? Yes, we would put a guidance note to Crown Office to say that, although that is the initial case, our belief is that that could potentially spread. It is very basic things like if it is a fresh relationship, they have only been in a relationship for six months, or during the disclosure interview, the victim discloses that they believe that previous partners have been subjected to that sort of behaviour and that can trigger it. Clearly, if it is a 20-year marriage, the actual historical inquiry might be over the length of that marriage. It really depends on the circumstances. What is the catalyst for us to take that next step? I think that we have heard quite rightly about the seriousness with which those cases are taken, partly because of the acknowledged underreporting figures that you talked about in terms of the number of potential incidents before there is an initial complaint made, the historical dimension to that as well. I am struggling to reconcile the evidence that you have given us this morning with the evidence that we heard from the Scottish Police Federation a week or so ago, where I think that the acceptance of the strategy of zero tolerance was not called into dispute. I think that what was being suggested was that there was effectively zero discretion for police officers to exercise their judgment in particular circumstances. Can you perhaps help me to reconcile what we heard from the Scottish Police Federation on behalf, presumably, of its members and the perspective that they had, which echoed what we heard from the Barn Association as well with what you set out this morning? I will try, because it is not for me to speak on behalf of the Scottish Police Federation. I can only reiterate the Police Scotland position. Bearing in mind that 49 per cent of domestic incidents that we deal with are non-criminal and are resolved at that time, and the 51 per cent that are criminal, again, the same threshold in terms of evidence has to be met before we can actually arrest an individual, because once we take that individual away from the scene, they are then taken to a custody office where an independent officer, normally of sergeant rank, will assess the evidence to satisfy him or herself that there is a sufficency of evidence before they will accept that individual into custody. And then, before we decide whether or not to keep the individual in custody, there is again that assessment of the evidence before it has decided what to do with the person. I can only reiterate what I have said. The conviction rate, which I spoke about early, tends to suggest to me that those cases that are reported to Crown are strongly evidenced, and the 80 per cent conviction rate tends to support that. Interestingly, I had a look at the cases that are not preceded on. In bearing in mind, again, it is not for me to speak on behalf of Crown, but Crown might take a decision not to proceed, not because of a lack of evidence, but because of a whole range of other factors. Currently, we are sitting at about 2.5 per cent of cases reported to Crown aren't preceded on, which again to me suggests that the people we are reporting are more than a sufficency of evidence. Given what you are saying and what we heard from Callum Steele the other week and indeed the Bar Association, have you endeavoured to have further conversations with them about what appears to be quite a deviance and deviation in terms of perception of how the current system is working? I mean, we speak regularly with the Federation. Any concerns are not just the Federation, all staff associations, unison, and association of Scottish superintendents. Any concerns that they flag up to us, we speak about it and we will have a look. If any member of the Federation wishes to draw particular cases that they feel have not met the threshold or were dealt with inappropriately, I am more than happy to look at that individually. As just now, none have been flagged to me, so I cannot really comment. I could just probe that a little bit more. Not only did Callum Steele, when he presented here last week, say that when a report comes in, one of the two involved will leave in handcuffs. We have also heard from defence agents that it is a matter of who reports it first as to which one of them will leave in handcuffs. Is that not something that you recognise? I think that that is with respect to Callum and the Bar Association over simplistic. To say that every time our officers go to their house, they are predisposed to say, right, well, somebody is leaving here in handcuffs. I do not see that, convener, in the figures that are articulated to you. 49 per cent of the time it is the police officers that leave the locust and the two people who remain behind. Again, yes, if there is criminality, then we have a duty to investigate that. If the threshold is made, the person will be arrested. Again, it is not unusual for both individuals to be arrested if there is evidence of criminality in both sides. Again, Chief Superintendent McEwen staff will then take an informed decision about whether we keep both the individuals in custody or not. For example, if you lock up a husband and wife and they have children, then there are obviously carer responsibilities there and it might well be that the balance proportionate decision is to release one of the parents to appear at court the following day or a day to be determined to allow them to undertake their caring responsibilities. I highlight that just to say that this is a really complex area. It is not as simple as saying that police officers will turn up, walk down the garden path and half an hour later walk back up the garden path with somebody in handcuffs. It is more complex than that. Perhaps if I could develop that a little bit further, we have had the written submission. Communication has been a incurring theme through Police Scotland, maybe a lack of sufficient communication between rank and file officers and senior members of the police force. I was very struck by the difference in the submission from the Scottish Police Federation and your submission, which did not move us on so much forward. Is there a communication issue about the police officers that are regularly attending these incidents and the hierarchy? If we go right back to an initial incident as well as the review by the custody sergeant, the shift supervisor, the shift inspector will review that incident before they go off duty. The following day, the morning management meeting, the area commander will review it, the following that, if there are any issues, the divisional commander will do it. There are a lot of check-in balances right the way through any domestic incident. In terms of contact with the staff association, we have regular formal and informal meetings with them. There is that opportunity to exchange views in a frank and forthright manner, and that happens quite frequently. We are always never going to agree on every aspect of that. There is no question that the role of the staff association is to represent the views of its members. That is absolutely correct. The role of the executive is to look at the best interests of Police Scotland and the communities of Scotland and to make sure that we are delivering the most effective efficient police service that we can. Sometimes there is a rub in both aims. To answer your question, there are clear lines of communication that are open at both ends between us and the staff associations. In terms of checks and balances, every domestic incident off the top of my head is probably reviewed about three or four times. In writing the communication act and bringing Mr McQueen into the discussion, can I ask you about communication within the Scottish Court and Tribunal Service and in the operation of daily business in the courts? I am sorry, but what actual respect— Are you happy that it is working effectively? I notice that you have got strategic working high level. Equally, we have had numerous people telling us that there is a premium number which they phone and which they are kept on the line for a considerable amount of time, but that all changes on the working of the court. If we are to get any answers about that, I believe that Mr McQueen is going to give us some. The issue of communication at the premium rate was more directed to the Crown Office. That is not within the Scottish Court and Tribunal Service. The issue is about bar associations trying to make contact with their fiscal, which is the Crown Office and Procurator Fiscal Service, not the Scottish Court Service. A little bit more on the joint operated system at a strategic working at a high level. There is a range of different levels that we try to operate within the Court Service to make sure that there are good communications across all of the justice organisations. First of all, we sit as a key member of the Justice Board along with Police Scotland, Crown Office, Scottish Government, League of Aid Board, Prison Service and others within the justice area to really try to do some of this forward planning in terms of the emerging issues that are coming up. How in the future are we going to deal with different types of business, whether it be increased sexual offending or cyber crime? We start to use that as part of our planning mechanism. We use it as part of discussions to go into spending and trying to work out where the pressures are on the system and how we best collectively use resources to address what we see being the future vision of justice. Very importantly, we extend that very much throughout the whole criminal justice boards. Within the six sheriffdoms, we now have six criminal justice boards, one for each sheriffdom. We have brought that down from 11. That brings together the main justice organisations within that sheriffdom. We do the planning on a day-by-day and a week-by-week basis about the organisation of business, about the efficiency of the court programming and about any adjustments that might need to be made at a local level. As far as we are concerned, that tries to work very coherently across the whole organisation from the perhaps what you might class as the high-level strategic plans down to the operational issues on a day-to-day basis and the programme of the courts. It is that very strong relationship, particularly at a local level, that actually makes the courts operate effectively. It is the role played by the sheriff principal, by the local fiscal, by the local bar association to jointly discuss the business at their court level. We did hear submissions from some witnesses that defence agents weren't on the board. Is that the case in some sheriffdoms or all sheriffdoms? The defence agents are on the local criminal justice board, but they take part in discussions within the local court. On the board, given that they have a day-to-day knowledge— That is a decision for sheriff principals, and they chair the local criminal justice board. The view that is taken is that the preference at this stage is not to have the defence agents on it. There will be some occasions where defence agents are invited along, and there will be specific sessions and discussions to take place. However, as a routine member, essentially this is the authorities that are tasked by the Government for disposing of court business. There are local boards, and then there is the high-level one that you have just talked about, and they are not represented in either. They are not represented in either, but we do have regular discussions, particularly with the law society. In fact, we met them just a short number of days ago to talk about our shared thoughts about the future planning for justice. Wouldn't it be better if they were on the board? Is there any reason why they should not be on the board? The idea of the board is to make sure that it is the organisations that have the authority and responsibility for delivering that part of business. I say that that is not to say at all that we do not involve them. There is some excellent work that we can come back to in terms of the work that we have been leading on evidence and procedure. We were trying to develop a new way for criminal justice in the future. Both the law society and the faculty are full members of that group who have made a very valuable contribution. Where the timing is right for both organisations, and there is no doubt that we actually come together to share thinking on that. Oliver Mundell, followed by Fulton MacGregor. Thank you. I want to start with ACC Higgins. It was just to ask one of the things that was picked up on, but I have not really focused on, was the amount of time police witnesses spend in the court. Is that a problem that you are aware of, where cases are not going ahead or police witnesses end up not being needed? We have tried to reduce the number of police witnesses. We have worked closely with Crown Office in that respect. I am in the police 28 years. In 28 years, this has been a recurring debate about how often and how many witnesses need to be cited. In recent years, there has been fantastic work done to reduce the level. Part of that is because we have put police officers in to work with Crown Office at various locations and they can identify when what level of witness is required. We have the witness scheduler, which we now share with Crown Office in terms of officer availability. In September of this year, I put out some guidance to officers saying that you do not need to include everybody in a witness list. Given some examples of what somebody who might be involved in a case but is not necessarily an relevant witness, just to reduce the number of people that appear in a witness sheet. There are still a large number of cases that look like they are going to go ahead, and then, at the last minute, they do not, because of the absence of other information. Despite being scheduled or having reduced it or done the best you can, there are still officers spending a large number of days in court where they never get called to give evidence. That is almost inevitable. Trials will fail to start for a variety of reasons. Often it will be a legal debate, because a witness has not turned up. In terms of figures, I do not actually have any to hand. I will maybe ask my colleague, Jesus Tim, if he has got anything further up to add to that. I can add a wee bit more value. The witness scheduler that the ACC talks about is a web-based application, and that has absolutely made a huge difference around the number of police officers that are required. In most parts of the country now, there is a one-hour or a two-hour standby, so officers are enabled there to do paperwork back in the office or are actually out in patrol, and then they get a two-hour standby, and the expectation is that they then make it in the court within that two-hour period, which is easily achievable in most areas, bar, some of the geographical areas. We have noticed in recent months some of the savings as a consequence of the witness scheduler across the reduction in police officer over time has been significant. It really is a first-class example around some of the good collaboration between the court service and the Crown Office and the police to make it more efficient. Do you think that you would be in a position to provide any of the statistics around that, or some of the numbers? I think that it would just be of interest. We will take action and we will formally write to the committee. My second question was more for Mr McQueen round the case management and programming, because across all the witnesses who spoke to me so far, there seems to be a recognition that things are not working perfectly on the ground. I know that it is difficult to schedule proceedings in court and things change and all the rest of it, but there seems to be a sense in which the fiscal staff did not have sufficient resources to properly and fully manage the case burden and that that was having knock-on impacts to scheduling within the courts. Is that something that you recognise? There are a few things that I will try to put in a context that the committee would like to make, but it is very helpful. I will also come back to talk about some of the issues that you were just asking Police Scotland about witness attendance. We recognise and certainly the previous justice committee recognised that the world has changed in terms of the type of crime that is coming into the court system. There has been a significant increase in domestic abuse now, as the policy is more consistent across the whole of Scotland. There has been a significant increase in sexual offending, trial abuse and historic trial abuse. The types of cases now are very different to perhaps what they were five or six years ago. That brings on complexity, because that means that there are many more cases that now go to trial. Those cases will be inevitably less likely to plead guilty at an earlier stage. Also, the cases, because of their complexity, will actually take longer to run. The issues around the programme have become quite complex. We also still work in a system that the world president has decided as a system that operates within the Victorian Age, of where we have a very antiquated way of how we bring cases forward. In the last year, for example, there were something in the region of 52,500 cases that were set down for trial, probably called for trial on the first calling, for only 9,000 trials to proceed. That meant at the very start something in the region of 460,000 witnesses, including police witnesses across Scotland, were cited to come to court for a figure of probably less than 100,000 witnesses that ever gave evidence at the system. The system, in terms of the way that it is designed, operates at the moment, actually has a significant number of efficiencies in it. Part of the difficulty at the moment is that all the organisations are trying to work as best they can within those efficiencies, but they are constraints. On a normal day in terms of how businesses progress into the court, when cases first call and we have a trial diet in 16 weeks time, we will allocate something in the region to 8 to 10 cases to that particular trial diet. Fairly safe in the knowledge that before the case comes to trial, four or five of those cases will have dropped out, either because there will have been a change in evidence or a guilty plea will have been preceded. On the actual day of trial, we will have something in the region of about four to five cases down for that trial. It is likely that one of those cases will either be not called or deserted for various reasons to do with evidence. It is likely to be that one of those cases will be adjourned, because either crown or essential defence witnesses did not appear. It is likely that probably only one or two of those cases will actually proceed to trial. Quite inevitably, there is going to be a significant impact on both police witnesses and civilian witnesses who have been cited in the court of a long period of time with relatively through by comparison given evidence. That is some of the context that we work with and some of the challenges we are trying to solve. Some of the areas that we are looking to address is work that we have been doing in terms of what we have reformed justice system look like. We have published two reports and we are now working collaboratively with the justice board to try to look at a very different model for how we manage business in the future. A type of model that would see substantially less people coming to court, substantially less procedural hearings and, when I mean substantially less, I am talking a figure over 100,000, potentially 150,000 less procedural hearings and a situation where we would only be setting trials once we knew that a trial was required. Again, I think that some of the earlier questions and evidence sessions have been discussed earlier pre-recorded evidence and why a trial was set at the very earliest stage. Our views at trials should not be set until it is known that a trial is the only way of resolving the issue, that any evidence that can be agreed has been agreed and that the only witnesses cited to court are the essential witnesses required for that. We genuinely believe that that could free up something in the region of about 300,000 witnesses that are currently cited in our view are necessary to court because they actually are not required to give evidence in those cases. Will you accept that that is something that has got worse in a sense with a lack of or a perceived lack of resources within the Crown Office itself and the fiscal service? No, I do not think that it has got worse at all. I think that it has been a feature of the justice system for many years now. It was a feature of the justice system that the mechanism of justice reform has tried to address. I think that what we have seen is marginal improvement in some areas over different parts of the years. What we are saying now is that there needs to be a fundamental different look as to how we can actually process business. In terms of the actual resources— Ideally, there should be not these eight cases unless they are all ready to go. However, the evidence that we have heard is that they are there and they are being presented. If they are not being presented, then they will be time-barred. It is the delays in the courts that are making ffiscals come forward with those cases. We know that they are not prepared to go down to the ready-for-preparation. Some of the evidence that you have heard is that there are no time-bars on trials. They will fall if they have not been heard within the appropriate time. Not within the JP and Sheriff Court, but the only time-bars that would apply to those particular cases once they have done trials. Do you recognise that statement that there are targets and they are not being met? That is why a large number of cases are being brought with absolutely no prospect of being heard. We heard that from the FTA union and we heard that from the other union. Is that something that you dispute? It is not something that I really see or recognise at all. There are no time-bars in terms of cases coming, so a case would not be dropped for a time-bar at a trial stage with either the Sheriff or the JP courts. I thought that in relation to speeding offences or driving offences, there were statutory limits, or recognised limits, where if a case had not reached court within a set amount of time— Yes, I think that this is a pre-service by the police at that initial stage. I do not know that it is. Once a case actually comes into the court, it will reach trial stage. No, not if the trial does not go ahead. That was the point that was being made. I think that there are a number of trials that are ready to go ahead and do not actually start on time because there is not a slot in which they can be scheduled. That is where cases are being time-barred. On a day-by-day basis, in a typical trial code, that is very much what I have just tried to describe to you. It is not that cases are getting put out by any means at all because of the time-barred. If there is not a scheduled slot for a case to start before it exceeds a time limit, what happens to that? What we are referring to, Mr McEwn, if I may, is the 140-day rule, the length of time somebody can be heard in custody before it comes to court. That applies in sovereign cases, which is not what the GPs were discussing this morning. That is where we are hearing that there are various rules that have to be applied with them. There is a build-up to make sure that they are met. Can we come back to that in a second? The time-bars are a slightly separate issue. Part of a trial has got to take place within a set time period, or else the trial does not proceed. Is that my correct understanding? That is correct in terms of custody trials. Is that not in terms of some motoring offences? There are two differences. One is that there is the process for summoning crime and the process for sovereign crime. In sovereign crime, there are time-bars that will apply, and in the vast majority of cases, those time-bars will be extended. We can come back and discuss that. In case of summoning criminal business, when the case comes to trial, if the case cannot be completed, the case will simply be adjourned to a further trial date. The summoning case would not fall at a trial stage because of time-bars. Do you think that the closure—we have heard from at least one witness—that the closure of a sheriff court of the reduction in the number of courts was leading to longer times before trials started and it put additional burdens on to the sheriff courts that remain? Is that something that you would recognise? Not at all in any way, shape or fashion. Court closures were very sensitive and very emotive, and I fully understand that. Equally at the time of court closures, there were very few people saying that fundamentally court closures were not the right thing, but very much about not in my area. There was a general view that some sense of a closure might be sensible, and that is the direction that went down. It is really helpful to keep it in perspective that we closed 10 sheriff courts. That meant that 10 sheriff courts took business in from those courts that closed. The remaining 29 sheriff courts had absolutely no impact whatsoever. 75 per cent of the courts had no impact at all from court closures. Of the 10 sheriff courts that took business in, every single one of those sheriff courts has improved performance since that court closed. We have less trials outstanding in those courts. We have shorter periods to trial, and we are fully meeting the 16-week waiting period between first coil on trying and fully meeting the period for domestic abuse cases. As far as we are concerned, the resources have been put in, and all those courts, the same staff, the same judiciary, transfer to those courts. We knew that with capacity within those courts to deal with in the business. I can understand why court closure sometimes becomes almost a convenient coat hanger, but in terms of its impact on the system it has not had any effect whatsoever. In 75 per cent of the courts it could have no effect because there was no impact on those courts at all. Liam McArthur, followed by Rona Lennon-Folton. I think that we find ourselves in the situation in which we have got evidence direct with what we have heard previously, both from the bar associations and from police variation, about the impact of court closures. Can I turn to a follow-up to Oliver Mundell's question in relation to—I think that you touched on it, Mr McQueen—in your written evidence, you talk as far as possible evidence should be agreed in advance and trial scheduled only when it is clear that it will take place and evidence will be laid. I think that we have heard that from a few witnesses now. To your mind, how close are we to achieving that, and what would you see as the obstacles to achieving a situation that would make the functioning of our courts more efficient in that respect? I think that it is fair to say that we are getting closer. At the moment, there are legislative constraints to that, so there need to be a quite fundamental and change in legislation to allow that to happen. At the moment, what we have done and through the work that Tim is leading, Tim might want to add to this, what we are currently trying to design jointly at the moment—and this includes working very closely with the legal profession—is a model of how a system might operate in the future. So how could we move away from a model where the reliance was on everyone physically appearing in court, evidence only being able to be given largely in court, and all judicial decisions made within a court environment? How could we move much more into a case management type system? It is not about individuals coming to court, but it is about evidence being available, shared at a very early stage, case management process kicking in to make sure that evidence is agreed, and trials only proceeding where it is something that needs to be resolved by a trial and witnesses cited. What we have done at the moment is worked throughout a model, and we have made the public available in terms of your last two reports. We are just finalising the current stage of a model, and if that is agreed by the Justice Board, it would then need to go to government. We would then take a view in terms of whether they want to consult on future legislation to make that change. Back to the point that the convener was quizzing you on in relation to the Justice Board. I think that one of the organisations that has perhaps raised concerns about how that might work in practice has been defence agents. In terms of the discussions of the Justice Board are taking place, is that being done in full consultation with defence agents? It is a good time for you to get in. The legal profession is playing a full role in both of these groups. We are currently taking forward a workstream under the evidence procedure review that we published in February this year, which set out an overall high-level model of what a new digitally-enabled case management-led summary justice system would look like. We said that we need to put the flesh on the bones of that, so we put together a working group that involves two nominees from the Law Society of Criminal Law Committee, who have been fully involved in a discussion on taking the summary justice system step by step with the aim of reducing the number of hearings in court and also the number of witnesses that are cited to attend court and to use digital technology to enable far more interaction between the parties before a trial diet is set. All the evidence suggests—this is something that both the defence agents and the group have suggested—that the more there can be dialogue between the crown and defence prior to setting a trial date, the more likely you are to get an early resolution of cases, and that the cases that do proceed to trial do so on the basis of a much more narrowed-down set of issues. That means that you can narrow down the number of witnesses that you require to speak to those issues. This model is very much a prototype that has been developed in partnership with all the justice agencies and the Law Society. We are still working on it, so it is not yet finalised. We will then take it forward. If it looks like it is something that could be delivered, it is something that we would put to the Scottish Government for their consideration. It would require legislation and it would require some investment in technology to enable the early disclosure of evidence, the early sharing of evidence and a case management system that allowed that early dialogue between crown and defence in order to get to those early resolutions that we are looking for. Can you just very, very quickly—it is on a completely different issue—but can I ask ACC Higgins to look at the evidence that we got from Mr McHugh and Mr Little in relation to the use of fixed penalties in the way that those are being applied? There was one example of four fixed penalties in the space of half an hour being presented to an individual who clearly had alcohol problems and there was no way he was ever going to pay for them. I think the evidence that we have heard this morning would bear a response from Police Scotland, perhaps not now, but certainly once you have had a chance to read the evidence from this morning. Can I just make a comment on that point about the fixed penalties? I think that the issues that the GPs recognise have been issues. Certainly in the introduction a couple of years ago, there were a number of cases like that and we worked very closely with both the Crown and Police Scotland to reduce those numbers. That has been happening. It is something that we do keep a regular track on. I also want to add the point that, in terms of the direct measures, the recovery levels are actually very high on them. The fines enforcement is effective, it is delivering for the direct measures in both the police and Crown. The recovery rate is over 80 per cent, which is a good figure by any means. In relation to any fines imposed by the GPs or the Sheriff's Court, it is closer to 100 per cent. Our recovery rates are high. We work very closely with the organisations, DWP, HMRC and we make regular benefit deductions. At the moment, we have something in the region of about 200,000 benefit deductions that have been imposed. Fines recovery is difficult and challenging for some of the reasons that they outline, but it is a role that we take very seriously. We apply it quite strenuously. I mean, to be interested to see the figures, but even if you are talking about a 20 per cent failure to recover, presumably those will fall into the categories that the GPs were outlining to us. The capacity to not just have benefit reductions but, in a sense, to apply a repayment mechanism that is proportionate to the individuals, I think, is again interesting. I think that the wider point that came out of it, I think, also that sometimes a decision on some of the cases that we bring into the criminal justice system is the best way of dealing with it. When there are genuinely people who have drug addictions, behaviouring and social type problems, is the criminal justice system always the right answer? Or should there be some diversions that take them away from criminal justice and more directly into support and rehabilitation type services? I think that there is a relevant and right discussion about how we best use the criminal justice system and is it right in every case for every individual? It certainly led on to the marking of cases and I was no doubt that it was a very live issue at the justice association meeting that I attended on Sunday. Rona, followed by Fulton. We have heard during previous evidence sessions that some complainers and witnesses are actually frightened to go to court and this can be just going for a cup of tea and meeting that they accused etc and they fail to turn up. Is this something that you recognise and, if you do, can you suggest any way that this could be improved? Is it the physical layout of the actual court building that is causing the problems? It is absolutely something that we recognise. I do not have any doubts at all. I think that in the last couple of years we have made significant improvements in terms of the way that we deal with witnesses and I think that some of the GAPs talked about some of that this morning. However, we certainly have not cracked it and we are not being complacent. I think that there is still more that can be done. We carried out significant work over the last couple of years involving victims support Scotland where we looked at the whole mapping of the victims of witnesses journey and how they move between the different organisations and how we put in the best standards of support. We have tried to agree and now publish new standards of services that we apply in terms of how we support and how we communicate witnesses but there is simply no getting away from the fact that coming into a court building on the day, despite the information and despite the support that was given previously, is a very intimidating type process for many witnesses. The design of our court buildings is not great. The vast majority of our court buildings are back to the sort of Victorian type age. There are historic buildings that have limitations in terms of how we can do that. We try very hard to make sure that there are cigarette defence and crown witness areas in all places and we have excellent support from witness service, which is provided by Victim Support Scotland, who play, to be quite honest, a superb role across all the courts in taking in witnesses that are vulnerable and that have concerns and trying to support them, put them in the ease and get them in their best place to give their best possible evidence in court. However, there is no doubt at all that it is a difficult experience and it is a challenging experience. There are limitations in terms of the best things that we can achieve. Again, part of the discussion comes round to ask whether we just accept that or try something different. The work that Tim has outlined in terms of evidence and procedure review is very much about trying to do two things. One, to reduce, first of all, vastly the number of witnesses that need to come to court at all, which is a step in the right direction. Secondly, to test and explore the areas where witnesses' evidence can be given at a much earlier stage, much nearer to the time of the event that happened, pre-recorded and then used in evidence. Again, within the work that we are trying to do, it is about how we reuse technology in a different way to capture evidence at the earliest stage and prevent witnesses having to come to court other than cases where it is absolutely essential. Certainly, in terms of the High Court, what we are looking to do in a very short space of time and early into next year is trying to apply that as widely as we can, particularly to children. How do we avoid children coming to court at all to give evidence so that we believe that, within existing legislation and with practice notes coming from the Lord Justice Quark, we can move to a world that will very quickly start to see children taken out of the court environment, certainly in relation to the more serious court in the High Court. We would allude to try to expend that. We recognise that there are big issues. We try to do the best practical things that we can within the constraints. The equally part of the drive is actually how do we stop them being there in the first place? Okay, thank you. That is helpful. Probably some of your answer relates to some of the measures that might be on the justice digital strategy. The committee has had criticism about the lack of progress with the strategy and also concerns about the effect of sharing of a security email, the effectiveness of that and about the security of the wi-fi system. Could you give us timescales, first of all, of how that is progressing that strategy? Part of the challenge is that the strategy covers probably about 15 on different areas across different organisations that have got responsibility, so to give you one answer on the timescale would be very, very difficult. In terms of the Scottish Courts and Tribunial Service, some of the things that we had given that strategy commitment was to roll out a new case management for civil business in Scotland, and that was rolled out last Monday. We have made a fundamental change in terms of the case management system that is now available. We now have wireless across all of our courts in Scotland, so that is there, it is usable, it is accessible, it is secure and there are no issues with it. We are now working with the Law Society and the Faculty to electronically bring on board all those members, so they now have access to it. In a very short space of time and hopefully a short number of weeks, every member of the Law Society or faculty or defence agents will have access to wi-fi across courts. Again, that is a step in the right direction. I say that it is in place in the courts, just now it is just simply getting the right registration process in place for defence agents to access it. The area that I think is of most interest is what is loosely classed as the digital evidence vault. We see that this is being one of the key areas that will solve a number of problems that are currently around at the moment. You mentioned the CGSM system as being one issue that has caused frustration, and the other issue that causes frustration is particularly in relation to video evidence in different formats and how it can be shared across organisations. The idea of the digital evidence vault is to try to see if we can get through some of those problems. The idea is that this would be a central store or a repository, and that would hold evidence associated with a case, which would then be securely accessed by organisations or defences from different points. Where we are at the moment—and you will realise that this is quite a complex development—is kicked off a prototype now, which is about building an evidence store about storing video evidence. How do we get video evidence out of the many hundreds of different formats that exist at the moment into one common format? Have it stored in the same area and make that accessible by different justice organisations? Through time, we look at the key part of the evidence vault that supports the work that Tim was describing earlier about how we get this evidence sharing across all organisations and across different defence agents. We are making process, but this is a big clunky staff. It takes time. I am very conscious of time and I am very conscious that Fulton MacGregor has been waiting for quite some considerable time to get in. I do appreciate the questioning that I want to do is get back in the conversations that have moved on. However, it is exactly the clear baker's earlier question, and it would be no surprise at all that I completely agree with Claire's line of questioning and the response from ACC Higgins. I would like to give ACC Higgins a chance to confirm that some of the criticism that perhaps we have heard through the process is that the police and subsequently the procurator are prioritising the cases of domestic abuse quite rightly. I do not think that he disagrees with that, but I would like to give ACC Higgins a chance to confirm that that is not the case. Thank you, sir. I confirm that that is not the case. Police officers are demand driven. We do not get to choose what calls are made to us and we have to respond to them all. If a domestic abuse call comes in, then yes, that will get a priority, but if a shoplifting call comes in, that will be answered as well. On the prosecutor's priority, again, that would be a matter for Crown Office, but I can assure you that we try and service all the demand that comes in. If I may convene, I just want to give Mr MacArthur some reassurance around the fixed penalty. We will have a look at that, but about six months ago we, in conjunction with Crown, introduced recorded police warnings. So far, there has been about 11,000 of them given. That is 11,000 non-cases that have been submitted or non-fixed penalty notices that have been issued. Rather than caution and charge somebody or giving them a fixed penalty notice, they are dealt with by way of a recorded police warning. If they receive two recorded police warnings within a set time for the same offence, they are cautioned and charged. That will reduce the number of fixed penalties that will be issued in the future, which hopefully will give another proportionate response to fairly low-level crime. A very quick question for Eric McQueen, as well. It is a follow-up from Rona Mackay's question, and I am also staying on the issue of domestic abuse. When we have been doing this inquiry, we have spoken to some victims and we have heard some quite harrowing tales of not only the abuse that they experienced, but also the subsequent experience of the court system. I think that you began to touch on it, but specifically for this type of offence, is there anything that you can think of that we could do to improve the process for victims of domestic abuse when they are coming in and out to court specifically? I think that there are two things. I think that in the short term it is about continuing the good things that we are doing. Already we are trying to improve the facilities in courts. We have far more TV links now that are available if people want to give their evidence-buying TV links. We are improving where we can the experience in court. I think that there was a comment made in the past about screens that are pulled out within court that were quite flimsy. All of those are now being largely replaced across our courts. Where people want to give evidence-buying the screen is now in a place that is safer and a more comfortable environment for them. Interestingly, the vast majority of vulnerable witnesses that come forward, their preference is to give evidence in court. We were thought that when the change came in with the Vulnerable Witnesses Act, there would be a big increase in people preferring to give evidence by video link, but it does seem very much that people want to give their evidence in court. Certainly our aim is to make sure that we support them as best we can to make sure that they have a safe environment somewhere that they are comfortable and that they can give their best evidence. If they choose to use screens to block them from their cues, then all those type things are in place. We are trying within the limitations that we have to provide the best possible service. All of our staff and front-line staff have gone through extensive training in terms of how we support not just vulnerable witnesses but all witnesses that come within the court environment. In the medium and long term, it is back to what we were talking earlier about fundamentally how we shift a significant number of witnesses from having to give evidence in court in the first place. I think that that has got to be our goal and where our focus stays, while at the same time we build on the improvements that we are making at the moment to try to make the experience for victims of witnesses the less traumatic and the less stressful that we can possibly achieve. One final very short question, a specific question from Stuart Stevenson, which should elicit a very equally short response. The rules for committees in the Parliament here at 4.37 read. A member may be present at a committee, count towards the quorum and participate fully by means of video conference. Are we heading towards that same interaction with video technology right across all aspects of the court system? If not, when? I would like to think that we are getting there. The honest answer is we are probably still in the early days. We have limitations in terms of the current legislation as to what can be done by video conferencing. At the moment, any custody hearings can't be done by VC and the same with trials other than vulnerable witnesses that requires people to appear physically in court. There are a range of procedural hearings, which we are now moving more routinely being done by VC. About a third of our courts now are transaction procedural business by video conferencing, and we are looking to extend that to the other courts next year. When the provisions come in, hopefully in May next year, custody cases will be able to be taken by VC and we are working with Police Scotland in crown as to how we could implement that. The answer to where we truly want to go in VC is back to the work that was done by Tim McStuffin earlier on. That genuinely is about capturing evidence at the very early stage electronically and reducing significantly the number of victims of witnesses in court. Questions remains for me to thank the witnesses very much for attending committee today. We now move into private session. The next meeting of the committee will be on 29 November when we will continue taking evidence from the Crown and Procurator Fiscal Service inquiry. I suspend the meeting to allow the public and official record to leave report to leave the room.